Publications

In the first part of his recent article in the Austrian Competition Journal, Fabian Ziermann discusses the changing landscape of European merger control. He outlines the evolution of the notion of control, emphasizing that uncontrolled acquisitions, i.e., below-the-threshold killer or zombie acquisitions, were never envisaged to be possible by European regulators. The two-part article examines whether Continental Can and Towercast represent an attempt by the CJEU to limit ex post merger control, whether Towercast is an ultra vires restriction on the application of Art. 102 TFEU, or a de facto acquisition ban for bottleneck holders. The article is available here.

In a recent working paper, Ariel Ezrachi (Oxford University) and The Hub’s Vicky Robertson ponder democracy’s tech-driven decline and competition law’s role in stopping it. Democratic governance is anchored in the principle that power is vested in the people, and that people can choose wisely. Citizens must benefit from an undistorted flow of relevant information that allows them to exercise their autonomous choices as citizens and voters. Despite the many benefits that the digital era has brought to users, it has also opened the door to increased manipulation, misinformation, and distortions in the marketplace of ideas. Can competition law be part of the solution to these issues? Find out by reading their working paper available on SSRN.

The third edition of the legal materials Kodex Competition Law brings together all relevant legal materials of competition law in one handy book and can be used by practitioners, academics and students. For the new edition, Vicky Robertson compiled all major updates, including the new Market Definition Notice (2024), the new Horizontal Co-operation Guidelines (2023), the new US Merger Guidelines (2023) and the Digital Markets Act (2022). Updates to the block exemption regulations are included as well. Published by LexisNexis, you can obtain your copy here.

Pictured with Vicky Robertson is Judith Feldner (partner at E+H) holding the legal materials on diversity and inclusion that she just compiled with Jana Eichmayer, also published by LexisNexis and available here.

Photo credentials: Leadersnet & Alexander Felten

In her recent contribution, published in the European Competition Journal, Vicky Robertson discusses adapting theories of harm in digital merger control. Based on her 2022 Report to the European Commission and her 2023 background paper for the OECD, Vicky shows trends and discusses challenges in the application of traditional theories of harm to digital merger cases based on an empirical survey of 97 national merger cases in the EU Member States and the United Kingdom.

The second part of Petar Petrov’s article on state aid and COVID-19 in the air transport sector (in German) was published in issue 4 of Zeitschrift für Beihilferecht (BRZ). This article focuses on the impact of COVID-19 on air carriers and on the latest developments in the field of state aid in this sector.

Data-driven methods, such as cartel screenings, offer competition authorities new and versatile tools for detecting competition law infringements. To achieve actual practical relevance, however, it is necessary that the outputs of such screenings satisfy certain evidentiary standards. In an analysis carried out within the realm of the DataComp project, Franziska Guggi and Vicky Robertson shed light on this question from perspective of Austrian competition law proceedings. They argue that cartel screenings can be applied throughout different stages of the proceedings: initiating investigations by the Federal Competition Authority, producing reasonable suspicion for conducting a dawn raid, and, last but not least, serving as a basis for the Cartel Court’s decision. To ensure that data is reliable, companies may also be requested to share their internal data. For now, cartel screenings cannot come up with bullet-proof evidence for competition law infringements. It is therefore necessary to keep in mind that an alternative explanation for the screening result is always possible. Last but not least, they stress the importance of explainable AI for competition law proceedings. The paper was published in the latest volume of the Austrian commercial law journal ecolex and can be accessed here. 

Source: https://legacy-rdb.manz.at/document/rdb.tso.LIecolex20231136